Bangalore District Court
Smt. Sarala Bhojraj Chugh vs M/S. Maruthi Computer Home on 11 September, 2019
1
O S No.8254/2016
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY: (CCH-56)
: Present :
SRI. K. NARAYANA PRASAD, B.Sc., LL.M.,
LV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S. No. 8254/2016
DATED THIS THE 11th DAY OF SEPTEMBER, 2019
PLAINTIFFS :: 1. Smt. Sarala Bhojraj Chugh,
W/o. Late. Bhojraj Fagunmal
Chugh, Aged 77 years,
2. Rajesh Bhojraj Chugh, S/o.
Late. Bhojraj Fagunmal Chugh,
Aged 51 years,
Both are residing at No.89 (Old
No.36) 1st Floor, 3rd Cross,
Sampige Road, Malleswaram,
Bengaluru-560 003
(By Sri M.B.C.C., Adv.)
/VS/
DEFENDANTS :: 1. M/s. Maruthi Computer Home,
No.10/2, 16th Cross, Malleswaram,
Bengaluru-3. Represented by its
Proprietor
2. K.R.Venkatesh, S/o.
Krishnegowda, Major, Prop:
Maruthi Computer Home, No.89
(Old No.36), Ground Floor, 3rd
Cross, Malleswaram, Bengaluru-
560 003
(By Sri M.M.G., Adv.)
2
O S No.8254/2016
Date of Institution of the suit : 05-12-2016
Nature of the Suit : Ejectment
Date of commencement of recording
of evidence : 23-3-2018
Date on which the Judgment was
pronounced : 11-09-2019
Year/s Month/s Day/s
02 09 06
JUDGMENT
This is a suit for possession and damages.
2. The case of the plaintiff is that, the plaintiffs are the owners of suit schedule property and it was let out to the defendants initially for the period of 11 months on monthly rent of Rs.22,050/- per month. After expiry of 11 months one more Lease Agreement came to be continued on monthly rent of Rs.23,153/- per month. The defendants have also paid security deposit of Rs.1,00,000/-. The defendants have occupied the premises during 2002 and continued as per Lease Agreement dated 18-12-2014. The tenancy 3 O S No.8254/2016 of the defendants came to an end on 02-11-2015. That no lease agreement was executed by the parties. The defendants were very irregular in payment of rents. They used to pay the rents once in three or six months. The plaintiffs have requested the defendants to quit and deliver the vacant possession of the suit schedule premises, as the son of plaintiff No.1 is an un- empolyed and wanted to start his own business. The defendants have not vacated the property even after repeated requests and ultimately, the plaintiffs have issued legal notice calling upon the defendants to deliver the vacant possession of suit schedule property and tenancy was terminated in accordance with law. Even after service of such notice, the defendants have not complied the terms and conditions of the notice. Hence, the suit is filed for ejectment and for damages from the date of suit till the delivery of possession.
3. On issuance of summons, the defendants have filed written statement. In the written statement 4 O S No.8254/2016 it is stated that, the 1st defendant is a Company incorporated at Companies Act and the legal notice issued by the plaintiffs is not proper. 15 days time fixed in the legal notice is improper. It should have been one year as per the rules. It is further stated that, the relationship between the defendants are admitted. The allegation of default in rent is denied as false and baseless. The defendants have paid rents up to the date of issuance of notice. The plaintiffs are receiving rents and the defendants are in peaceful possession. The intention of the plaintiffs is to evict the defendants and to let out the same for higher rents. Accordingly, by denying validity of termination of tenancy the defendants have prayed for dismissal of the suit.
4. In view of the above rival contentions, the then Presiding Office of has framed the following issues
1. Whether the plaintiff proves that he is entitled to vacant possession of the suit schedule premises from the defendants ?
2. Whether the plaintiff is entitled for 5 O S No.8254/2016 damages of Rs.50,000/- per month from the date of suit till the date of possession ?
3. Whether the plaintiff is entitled for mesne profit order ?
4. What decree or order?
5. The plaintiff No.2 got himself examined as PW1 and Ex.P.1 to Ex.P.31 are marked. Ex.P-31 confronted to DW-1. The 2nd defendant got examined himself as DW- 1 and no documents are produced.
6. Heard the arguments of both side.
7. The answer to issues are as follows;
Issue No.1 : As infructuous
Issue No.2 : Partly in affirmative,
Issue No.3 : In the Negative,
Issue No.4 : As per final order for the
following...
REASONS
8. Issue No.1 :: The plaintiffs have filed this suit for possession and damages. The plaintiff claims that, defendant No.1 is Proprietorship concern represented by its proprietor 2nd defendant. The suit is 6 O S No.8254/2016 filed for ejectment of defendants from suit schedule property. The plaintiffs have also claimed damages from the defendants for illegal use and occupation of schedule property after termination of tenancy.
9. On going through the order sheet it is seen that, the defendants have handed over the keys of schedule premises before the court on 31-10-2018 and initially the plaintiffs have filed objections for receiving such keys stating that, the defendants are due in arrears of amount and other damages and later on 05-11-2018 the plaintiffs have collected the keys as per the order passed by this court. In view of the same, this issue do not survive for consideration. The plaintiffs are landlords and defendants are tenants. There is no dispute with regard to jural relationship. Accordingly, the possession was handed over by handing over the keys before the Court. Hence, this issue has become infructuous. Accordingly this issue do not survive for consideration. Hence, it is answered 7 O S No.8254/2016 as 'infructuous'.
10. Issue No.2 & 3 :: These two issues are considered together as they are interlinked to each other and this is also done to avoid repetition of facts.
The rate of rent before termination of tenancy is admitted by both parties. The rate of rent is Rs.23,153/-. The plaintiffs have issued legal notice to the defendants and it was duly served. Ex.P-1 is the legal notice dated 11-08-2016, which was duly served as per Ex.P-4. Again one more notice was issued on 03-10-2016 by terminating tenancy with effect from 02-12-2016. This notice is also served as per postal endorsement Ex.P-9. During the course of cross- examination this fact is admitted by defendant No.2
11. The plaintiffs have claimed Rs.50,000/- per month as damages for illegal use and occupation of schedule property by the defendants. The defendants have denied this fact and states that, the plaintiffs are 8 O S No.8254/2016 not entitled for such damages.
12. Initially the plaintiff No.2 got himself examined as PW-1 on 23-03-2018 and produced 10 documents before the court and he was cross- examined by the defendants. Later the possession was handed over in the month of October-2018. Thereafter, a Memo was filed by the defendants stating that, the suit has to be dismissed since it has become infructuous. The said Memo was opposed by the plaintiff stating that, the other reliefs are to be considered, as the defendants have committed default and due to pay arrears of rent by way of damages etc., Again plaintiff No.2 has filed additional affidavit on 01-06-2019 and he has produced Ex.P-11 to P-30 documents before the court. By way of filing additional affidavit, the plaintiffs have stated as to what is due from the defendants and prays for recovery of such amount. PW-1 was cross-examined to that effect and the defendant No.2 has also lead evidence by stating 9 O S No.8254/2016 that, he is not liable to pay any amount.
13. The learned counsel for the plaintiff vehemently submitted before the court that, tenancy was terminated with effect from 02-08-2016 and from 02-08-2016 the defendants are due to pay the arrears of rent till handing over of possession. The learned counsel submitted that, the relationship is not disputed. Receipt of legal notice is not disputed. The date of handing over of possession is also not disputed. The learned counsel submits that, the plaintiffs have filed Memo of calculation before the court to show that, the defendants are due in a sum of Rs.3,11,978/-, which is required to be paid by the defendants.
14. On the other hand, learned counsel for the defendants submitted that, plaintiffs are not entitled for recovery of the amount. A sum of Rs.3,00,000/- was invested by the defendants towards furniture, which 10 O S No.8254/2016 are agreed to be considered at the time of vacating the property by the defendants. There was no cross- examination made in respect of investment of Rs.3,00,000/- by the defendants and accordingly, he relies on two decisions, which are reported decisions, details are mentioned below;
1. AIR 1966 Supreme Court 735
2. AIR 1983 Calcutta 337
15. There is no dispute that rate of rent for schedule premises at the time of termination of tenancy was Rs.23,153/-. On over all understanding of the evidence of DW-1 and admission given by him, Court can make out that, he was paying rent only by way of cheque. He has not produced any documents to show that, he has paid any rent or damages after termination of tenancy. The 1st notice issued by the plaintiff terminating the tenancy is produced and marked as Ex.P-1. On going through the records it is seen that, from 03-08-2016 till 03-10-2018 the amount 11 O S No.8254/2016 is required to be paid by the defendants. The plaintiffs have prayed for damages to the extent of Rs.50,000/- per month. However, on going through the evidence of PW-1 it has been clearly stated that, they are restricting their claim only to the extent of Rs.23,153/- per month. Hence, the main issue under this issue No.2 is whether the plaintiffs are entitled for damages have to be understood to that extent. The plaintiffs are not claiming any damages other than the agreed rate of rent before this court. Hence for all practical purposes we have to consider the monthly rent to be treated as damages at Rs.23,153/-.
16. The defendants No.2 is a Proprietor of defendant No.1 in his evidence has just stated that,he has spent Rs.3,00,000/- for furnitures and that amount has to be considered while deciding the quantum of amount payable to the plaintiffs. He never says that, he is not due in arrears of rent from 03-08-2016. On going through his affidavit, he states that after 12 O S No.8254/2016 adjusting money spent towards furnitures he is not liable to pay any amount. The defendants have mainly relied on said statement made during the course of evidence to prove that, a sum of Rs.3,00,000/- is invested towards furnitures. There is absolutely no documents or photographs or anything available before the court to show that, a sum of Rs.3,00,000/- was invested by the defendants towards furnitures and it is further not proved before the court that, plaintiffs have agreed to give deductions for such investment.
17. Admittedly no such reference about investment is made in the written statement or in the lease agreement. For the first time the investment of Rs.3,00,000/- is stated in the affidavit evidence of DW-
1. Learned counsel for the defendants relies on decisions reported in AIR 1996 Supreme Court 735 (Bhagwati Prasad Vs. Chandramaul). The Hon'ble Supreme Court has laid the principles as follows;
"...........If a plea is not specifically made and 13 O S No.8254/2016 yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by the evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence ab out it ? If it appears that the parties did not now that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a 14 O S No.8254/2016 matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another....."
On going through the citation the Hon'ble Supreme Court has held that, if the plea is not specifically made and yet it is covered by an issue on implication that would not necessarily disentitle the parties from relying upon it if it is satisfactorily proved by evidence.
18. The said ruling is decided on the question of title of the parties in that suit. Even for a moment if that citation is applicable to this case, then also the defendant No.2 has failed to show that, he has invested that much amount for the schedule premises and the plaintiffs have agreed to consider such investment at the time of vacating the property etc., The defendant No.2 claims that, he has invested for fixing front door shutters, windows, security grills etc., 15 O S No.8254/2016 The defendant No.2 is the proprietor of defendant No.1 and they must have maintained some accounts i.e., account books, invoices and other documents. Nothing is produced before this court to show that, such investment was made. In addition to this, the plaintiffs have produced photographs Ex.P-11 to P-30 before the court. None of the photographs shows the existence of any furnitures in the suit schedule premises. Hence, the defendants contention that, he has invested Rs.3,00,000/- is without any merits.
19. The learned counsel for defendants have also relies on decision reported in AIR 1983 Calcutta 337 (Traders Syndicate Vs. Union of Indi) Head note 'B' reads as follows;
".............Examination-in-Chief of Plaintiff's witness on point in dispute - No cross- examination preferred on the point - Court can hold that defendant accepts plaintiff's case on the point in entirety - No dispute on the point can be raised in argument..16
O S No.8254/2016 In a suit filed by the consignor for recovery of compensation for non-delivery of a Railway consignment it was contended that the suit was not maintainable as the plaintiff had never earlier lodged any claim before the concerned Railway authorities, which was essential. The plaintiff's case was that such a claim was lodged on his behalf by the consignee. A witness on behalf of the plaintiff deposed to that effect. However the witness was not cross-examined on the point and no suggestion was put to him that the claim lodged by the consignee was not on behalf of the plaintiff. The dispute was however raised in arguments.
Held that, in the circumstances it was the bounden duty of the defendant's counsel to cross-examine the plaintiff's witness on the point in dispute and put his case to him that the plaintiff never made any claim before the Railway authorities concerned. In the absence of such cross-examination and suggestion, the Court was bound to hold that the defendant had accepted the plaintiff's case on the point in its entirety. The defendant's counsel was, therefore no entitled to argue that no claim was made by 17 O S No.8254/2016 the plaintiff or that the evidence of the witness on the point should be rejected........"
20. Main argument of the learned counsel is that, the plaintiff not cross-examined DW-1 with regard to investment of Rs.3,00,000/-. There is no merits in the said submission, as the plaintiffs have elaborately cross-examined DW-1 with regard to alleged investment of Rs.3,00,000/-. Having regard to these facts, the citations relied on by the defendants are not applicable to the present set of facts.
21. Admittedly, the defendants have not paid any rent or damages from 03-08-2016 till 03-10-2018, which comes to nearly 25 months. The plaintiffs are fair enough to claim only admitted rent and not even claimed damages more than rent. This shows the bonafide act of plaintiffs. The total rent payable for 25 months from 03-08-2016 to 03-10-2018 at the rate of Rs.23,153/- comes to Rs.5,78,825/-. The defendants 18 O S No.8254/2016 have deposited Rs.2,00,000/- before this court and also paid advance amount of Rs.1,00,000/-. Hence, if Rs.3,00,000/- is deducted from Rs.5,78,825/-, the defendants are due in a sum of Rs.2,78,825/-.
22. The plaintiffs have also claimed water charges. But there is nothing available to show that, such amount was paid by plaintiffs or whether such amount has been agreed to be paid by the defendants under the lease agreement etc., Hence, the claim of Rs.10,000/- by the plaintiffs towards water charges is not proved to the satisfaction of the court.
23. In view of the above observations, the plaintiffs have successfully proved that, defendants are liable to pay Rs.2,78,825/- towards damages at the rate of Rs.23,153/- per month from 03-08-2016 to 03-10-2018. In view of the above discussions the plaintiffs are not entitled for any mesne profits, but entitled for agreed rate of rent as damages. Hence, 19 O S No.8254/2016 issue No.2 is answered partly in affirmative and issue No.3 in negative.
24. Issue No.4 :: For the reasons on Issue Nos.1 to 3, the suit is required to be partly decreed as follows;
ORDER The suit of the plaintiffs is partly decreed with cost as follows:-
The defendants No.1 & 2 are jointly and severally liable to pay a sum of Rs.2,78,825/- to the plaintiffs within two months from the date of this order,failing which, the plaintiffs are entitled for said amount from the defendants together with interest at the rate of 9% p.a., on Rs.2,78,825/- from the date of suit till entire amount is paid.
Prayer for possession of suit schedule premises has become infructuous, as the plaintiffs are already in possession of the property.20
O S No.8254/2016 Draw Decree Accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by me in the open court on the 11th day of September,2019).
(K. Narayana Prasad), 55th Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF ::
PW.1 :: Rajesh Bhojraj Chugh
LIST OF WITNESSES EXAMINED ON BEHALF OF
DEFENDANTS ::
DW.1 :: K.R.Venkatesh
LIST OF DOCUMENTS MARKED ON BEHALF OF PLAINTIFF ::
Ex.P.1 :: Office copy of the legal notice Dt: 1-08-2016 Ex.P.2 :: Postal receipts Ex.P.3 :: Postal receipts Ex.P.4 :: Postal acknowledgement Ex.P.5 :: Office copy of the legal notice Dt. 03-10-2016 21 O S No.8254/2016 Ex.P.6 :: Postal receipts Ex.P.7 :: Postal receipts Ex.P.8 :: Returned postal cover Ex.P.9 :: Track sheet issued by Post Master Grade-1 Ex.P.10 :: Original GPA executed by plaintiff No.1 in favour of plaintiff No.2 Ex.P.11 to :: Photographs of schedule Ex.P.30 :: premises Ex.P-31 :: Copy of lease agreement LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENDANTS ::
NIL (K. Narayana Prasad), LV Addl. City Civil & Sessions Judge, Bengaluru.
22 O S No.8254/2016